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The Penalty Is Declined: The NFL\u27s Exclusive Streaming Agreements and the Limits of Antitrust Law
No full textThe National Football League’s (NFL) decision to grant NBCUniversal’s Peacock streaming service exclusive rights to carry the 2023–24 wild-card matchup between the Kansas City Chiefs and the Miami Dolphins signaled a major shift in the league’s media distribution strategy. Football fans that had long depended on free, over-the-air broadcasts for the most pivotal games of the year suddenly discovered that they had to subscribe to, and pay for, a streaming service they otherwise did not want or need.
The migration of live sports programming away from conventional broadcast networks touches on more than subscription fatigue and rising credit card statements. The advertising dollars generated by high-profile NFL games are critical to the over-the-air broadcasters that provide essential public interest programming such as local news, weather updates, and emergency alerts.
This Note analyzes the NFL’s exclusive streaming agreements through the lens of federal antitrust law. It argues that these agreements would probably survive a challenge under section 1 of the Sherman Act. First, the Sports Broadcasting Act’s antitrust exemption for “sponsored telecasting” likely encompasses streaming services. Second, the U.S. Supreme Court’s 2010 decision in American Needle, Inc. v. National Football League suggests that the NFL’s exclusive streaming agreements would withstand a rule of reason analysis. Finally, the common-law ancillary restraints doctrine provides yet another basis for a court to uphold these agreements.
Given the probable success of the NFL in the event of a challenge brought under section 1, this Note proposes that Congress amend the Sports Broadcasting Act to effectively codify the league’s longtime distribution strategy of providing free, over-the-air broadcasts of the games that matter most to fans and broadcasters alike
Pressing Charges: Criminal Fees and the Excessive Fines Clause
No full textMillions of people owe money to the government as a consequence of a criminal charge. But while some of that debt is tied to fines or restitution, much of it is levied as fees, or payments owed to the government for the administration of a defendant’s criminal proceedings. Criminal fees can include costs assessed for pretrial detention, a public defender, a jury, a court appearance, filing a document, electronic monitoring, and more. They are assessed at every stage of a criminal case and for all types of offenses. While state and local governments claim that criminal fees are necessary to fund the administration of justice, most defendants cannot pay, bringing a slew of additional consequences. This Note suggests that the Excessive Fines Clause of the Eighth Amendment, recently revived by the U.S. Supreme Court in Timbs v. Indiana, prohibits the assessment of criminal fees. Financial penalties imposed as punishment for a criminal charge, without regard for the cost incurred by the government or the defendant’s ability to pay, are both punitive and excessive. Many fees infringe on criminal defendants’ other constitutional rights—the very problem the Excessive Fines Clause intended to remedy. Federal and state courts have been slow to meaningfully implement Timbs. This Note critiques those courts’ post-Timbs decisions and advocates for a different approach to Excessive Fines Clause claims. In the meantime, this Note proposes that state legislatures take up the mantle of reform to bridge the gaps left by the courts. Some state legislatures have already begun eliminating criminal fees over the last few years without undercutting their budgets. This Note surveys and compares state laws and offers suggestions on implementation. By continuing to identify and remove excessive fees, states can prioritize the fair administration of justice, from policing to prosecution
In Memoriam: Robert D. Cooter
No full textThe International Review of Law & Economics is publishing these notes in memory and celebration of Robert D. Cooter—its Editor from 1988 to 2004—offering brief reflections on him as teacher, scholar, and exemplar. A giant of law and economics, Robert D. Cooter combined breadth with creative insight: he helped build a systematic economic understanding of torts, contracts, and property, a novel approach to public law and Constitutional design, and opened new frontiers on the interaction between law and social norms and on the expressive power of law. His humanity and scholarly ethos—curiosity, humor, and intellectual honesty—left a lasting mark on all who had the privilege to learn from him as students, colleagues, co-authors, and friends
Colombia, COVID-19, and the Colonial Trap: Reflections on the Politics of Knowledge Production
Full text linkThe COVID-19 pandemic has made historical and contemporary colonial relationships between and within states more fraught. This complexity is apparent within the research process itself, adding a new dimension to debates on positionality and the politics of knowledge production. Drawing on critical approaches to International Relations, and in dialogue with an emerging literature on the implications of the pandemic for knowledge decolonization, we reflect on our experience as scholars from the UK/Ireland researching colonial legacy and Transitional Justice in Colombia. The aim of this autoethnographic article is to suggest how the COVID-19 pandemic affected inequalities between researchers based in Europe and participants in Latin America. Our findings are mixed. While Covid-related funding cuts undermined equity within relationships, the virtual field offered an opportunity to cultivate cooperation between researcher and participant and re-think issues of ethics, voice, and the research agenda itself. Finally, El Maestro Covid taught us valuable lessons on the colonial trap inherent in our endeavors
The Problem of Purpose in Corporate Law
Full text linkFor the last half century, shareholder primacy has reigned as the dominant definition of corporate purpose, as to both the purpose of individual companies and corporate law more generally. Recently, however, the Business Roundtable, the American Law Institute’s Restatement of the Law: Corporate Governance, and many business and legal academics have developed new answers to explain why we have corporations, and the ends to which their massive economic powers should be directed. This Essay endeavors to reframe the focus of the debate beyond purpose itself into the realm of actual governing power. In order to be meaningful, purpose needs governance. While an expansion of corporate purpose to consider the interests of corporate stakeholders would be a positive development, that change will not make a difference unless governance is also restructured to accommodate those stakeholders. We need to undertake the complicated but ultimately rewarding work of restructuring corporate governance if we want to replace shareholder wealth maximization as our orienting economic principle
Debt, Work, and the State
Full text linkIn every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical, it has never before been the subject of scholarly debate. This Article thus begins an important conversation about debt, work, and the state.
This Article identifies the pervasive authority that state and local governments have to revoke an individual’s occupational license solely because that person owes a debt to the government. Its first contribution is descriptive—proffering a mapping of state statutes and municipal ordinances that give the government the authority to use occupational licensing restrictions as a debt collection tool. And because this debt collection tool is potent, punitive, and disproportionately affects low-income workers, policy- makers must better understand and grapple with its benefits and burdens. Therefore, this Article’s second contribution is conceptual—proposing a new way for how the state should analyze its debt collection actions. It argues that the state must consider more than the cost-benefit analysis a creditor typically employs in a private arms-length transaction. Governments must also consider moral and public interest factors unique to state action. Using debt-based occupational licensing as an example, this Article models both a traditional cost-benefit analysis and the more extensive benefits-burdens model proposed herein, exposing the critical differences in the two analyses. It then concludes with proposals for specific policy changes to debt-based licensing restrictions that better reflect the government’s unique interests in protecting individual debtors, families, and the broader public
Forgotten Victims: Exploring the Right to Family Integrity as a Form of Redress for Children of Wrongfully Convicted Parents
Full text linkAlmost five million children in the United States have had a parent incarcerated at some point in their lives. Children who grow up with an incarcerated parent face immense challenges, including mental health issues, problems at school, economic hardship, and the propensity to participate in criminal activity themselves. When it turns out that the child’s parent was wrongfully convicted and incarcerated for a crime they did not commit, the challenges faced by the child are even more devastating. One way that a child may be able to obtain a remedy in these instances is through their due process right to family integrity. The Supreme Court has extended the Fourteenth Amendment Due Process Clause to protect parents and children from state interference with their familial relationships. However, circuit courts are split on whether unintentional state interferences with the family relationship violate the right to family integrity, or if this right is only violated by intentional interferences. This specific-intent element, required by a vast majority of circuit courts, unfortunately makes it difficult for a child who is deprived of a relationship with their parent due to wrongful conviction to state a successful claim, because it is unlikely they will be able to prove that the state actor who wrongfully convicted their parent did so with the intentional aim of violating their relationship with their parent. This Note begins by exploring the prevalence of wrongful convictions, the impacts of parental incarceration on children, and the constitutional right to family integrity. It then analyzes the circuit split and proposes that, because both the minority and majority circuit reasonings fall short, the shocks-the-conscience test should instead be used by courts to determine whether a child has stated a claim of interference with their right to family integrity. This proposed test would allow courts to take into consideration the specific circumstances of a wrongful conviction to determine whether the child’s rights have been violated, instead of relying on a rigid rule that is nearly impossible to satisfy in the wrongful incarceration context. Although the minority view does come to the correct conclusion, this Note argues that the shocks the-conscience test is a better and clearer way for courts to assess this issue going forward
Presidential Control and Administrative Capacity
Full text linkPresidential control is the power to direct administrative capacity toward the President’s own policy objectives. Accordingly, presidential power vis-à-vis administrative policymaking has two necessary components: control and capacity. First, the President must have the ability to set the agency’s policymaking agenda and direct the day-to-day activities of its leadership and career employees. Second, the agency needs a well-managed team of policymakers with expertise and experience in both the substantive policy area and the policymaking process. Yet scholars have long assumed—without much empirical testing—that the administrative state has sufficient capacity to implement the President’s agenda. Not so.
This Article argues that insufficient capacity prevents Presidents from implementing their policy agendas. This Article’s goal is to encourage scholars, policymakers, and judges to engage more with capacity as a constraint on presidential action. Drawing on a survey of federal executives engaged in rulemaking, over 115 million federal personnel records, and over 5,000 rulemakings from three presidencies, this Article contributes three core findings to our understanding of presidential power. First, new measures of policymaking capacity show wider variation across federal agencies than people often assume. Second, a new survey of federal executives shows that Presidents and their proxies exercise a great degree of control over agencies’ rulemaking agendas. Third and finally, multivariate models demonstrate that, controlling for presidential control and presidential priorities, low-capacity agencies are less likely to complete their rulemakings than high-capacity agencies. Most importantly, Presidents struggle to implement their agendas in low- capacity agencies regardless of whether they have significant control over those agencies. Traditional markers of presidential control prove ineffective in low-capacity agencies, and, therefore, control and capacity are complements—not substitutes.
The results have important implications for public administration and existing theories of presidential power. The wide variation in capacity raises questions about whether agencies have the capacity needed to make policy pursuant to congressional delegation. Moreover, strong adherence to unitary executive theory may have the unintended effect of weakening the President’s ability to pursue their preferred policies by eroding administrative capacity. Instead, presidential power requires an appropriate balance of presidential control and administrative capacity. But control and capacity are in tension with one another. As presidential control increases within an agency, the agency may struggle to hire expert and experienced employees. Building a strong and efficacious presidency requires shifting the balance toward effective management, away from efforts to reduce structural insulation within agencies. Entrusting the President with the managerial prerogative requires increased oversight from the courts, Congress, and the public